HL Deb 13 May 1983 vol 442 cc724-32

12.9 p.m.

Report received.

Clause 1 [Prohibition of female circumcision]:

Lord Rea moved Amendment No. 1: Page 1. line 7, after ("person") insert ("for non medical reasons").

The noble Lord said: My Lords, if I may, I would like to speak also to Amendments Nos, 3 and 5 standing in my name because, as I will explain, they are linked. This amendment is really the same of that of the noble Lord, Lord Hunter, at Committee stage three days ago, but the wording is altered so that it will, I hope, be more acceptable. It clarifies which operations should be prohibited. In the Bill as it stands at present approximately 9,000 legitimate operations per annum could be classified as prohibited. I understood the problem involved in using the words, for ritual, cultural or traditional reasons", in the amendment of the noble Lord, Lord Hunter of Newington, from the point of view of both interpretation by the court and also that it could be interpreted as revealing an attitude in this country which is intolerant of the customs of other cultures, although in this case everyone will agree that no one should tolerate this particular custom.

For these reasons I did not support the amendment of the noble Lord, Lord Hunter, although I fully agreed with and understood his purposes. I have the highest regard for the noble Lord, Lord Hunter, who always makes clear and extremely helpful contributions in this House. However, in this case I think he was too modest and did not spell out the purposes of his amendment as loudly and as clearly as he might have done.

In his comments on the amendment the Minister intimated why he felt that the amendment was a good one and why he was in favour of it, but I do not think his words sank in so I shall quote some of them again. He said, referring to the noble Lord, Lord Kennet: the way he has constructed his Bill is to prohibit all operations on these parts of the female anatomy and then to provide certain savings in terms of medical necessity".—[official Report, 10/5/83; col. 440]

I hope I have made the purpose of this amendment clear by linking it with the elimination of the enforcement Clauses, Nos. 2 and 3. It is these clauses that the Royal College of Obstetricians and Gynaecologists finds objectionable, and although the noble Lord, Lord Kennet, has softened them with his amendment, the fact that parts of them stand will still be regarded as undesirable and even rather insulting by many reputable gynaecologists who have been helping women for decades by operating on this highly personal part of their bodies. They justifiably ask why it should now be necessary for every operation which they carry out on these parts of the female body suddenly to be subject to legislative scrutiny because a few "cowboy" gynaecologists, who are not even National Health Setvice consultants, have been undertaking for private gain procedures which all professional and nursing organisations regard as totally abhorrent and unacceptable. Why, in order to prevent what is admittedly a rare occurrence, should their normal professional practice be so scrutinised? I can understand why they should feel irritated and why the Department of Health and Social Security, which is perhaps closer to professional opinion and needs the co-operation of the profession, feel unhappy about the Bill as it stands.

I am as interested as anyone in the House that the Bill should become law. I have supported it from the start. It will be of great help to its passage in the next Parliament if we in this House pass it now. However, to ban all operations on these parts of the body and then make exceptions is, as I think the noble Lord the Minister said, perhaps the wrong way of going about it. It is very important that today we totally eliminate these parts of the Bill which are causing problems to the Royal College of Obstetricians and Gynaecologists and the Department of Health and Social Security, and simply produce the essential nugget or distillation that the Bill embodies.

I am fully aware that the words "for non medical reasons'. may not be the final formula which this House or another place at a later stage will decide is best, but by using this formula the spirit of the Bill will be fully understood by any court. For example, if a woman says that she is depressed because she has not had this operation which was traditional in her country, and if a doctor claims that that is a medical reason, I do not think that will he upheld in any court in this country, particularly after the very clear and forthright statement of the noble and learned Lord the Lord Chancellor on Second Reading drawing attention to the provisions of the 1861 Act relating to offences against the person.

Some may say that the law is an ass, but I do not think that it is such an ass as to ignore the powerful message which this Bill embodies. What is needed is a clear statement that this operation is totally abhorrent to the people of this country and that there are severe penalties for doing it. Thanks to the researches of the noble Baroness, Lady Masham of Ilton, as well as to the statement of the noble and learned Lord the Lord Chancellor, these are now embodied in the Bill. Twice during her remarks at Committee stage the noble Baroness used the phrase, "for non-medical reasons". No one questioned what she meant; it was clear enough to us. By cutting the Bill down to its bare essentials and leaving out the contentious enforcement clauses we shall leave those in this House and in another place during the next Parliament a sound basis on which to build if they wish. I think the Bill would serve its purpose if we amended it in the way I suggest. I beg to move.

Lord Kennet

My Lords, the noble Lord, Lord Rea, covered three topics in the course of his remarks. I am not sure whether the House wishes me to follow them through, but unless anyone is against it I will address myself to all three topics in the three amendments.

The first, and no doubt the most important, is Amendment No. 1, which proposes the addition of the words, "for non medical reasons". The effect of this would be that any person performing this operation or these mutilations for non-medical reasons would be guilty of an offence and any person performing them for medical reasons would be within the law. Of course, everyone agrees that anything which is clearly non-medical should be banned. We have to look closely at the effect of permitting that which could be described as a medical reason.

The noble Lord is right in saying that very little is known at present about cases that have taken place in this country. A great deal is known about one such case which has been widely and credibly reported in the press. In that case the surgeon concerned told the press, as reported: If someone comes in here saying they are depressed, or something, then we do it. That means that if a surgeon, a gynaecologist or a GP—mark you, it does not have to be a psychiatrist because we ruled psychiatrists out in Committee, and I know that the noble Lord, Lord Rea, does not want them back in—decides that a woman is clinically in a state of depression, the question arises: is an operation to improve that state of depression medical or non-medical?

The next question that arises is: is depression an illness, and is its treatment a medical matter or not? If we are to maintain that depression is not an illness and that treatment of depression is not a medical procedure, we are ruling out a very large part of a medical practice in advanced countries at the moment. Of course depression is an illness; of course its treatment is medical; and of course those who want to do these operations will plead that in court if they are charged, and thereby we shall write a very large loophole into the Bill.

I now refer to Amendment No. 2, in my name, which is an alternative to the "non medical" of the noble Lord, Lord Rea. The House will see that there is a better way of helping to overcome the objections which have been raised by the Royal College of Obstetricians and Gynaecologists. I do not want to confuse the issue by talking about Amendment No. 2 at the moment, but would simply ask the noble Lord, Lord Rea, whether he would be prepared not to press Amendment No. 1, and I shall then proceed with Amendment No. 2 and hope to convince the House that that is the right way to do it.

Baroness Hornsby-Smith

My Lords, I support the noble Lord, Lord Kennet, because this would otherwise leave a dangerous loophole. I do not want to repeat what I said on Second Reading. Indeed, I have the highest admiration for the distinguished gentlemen who make up the hierarchy of our royal medical colleges, but they were born and bred with ethics which existed in a period when they never had to deal with this problem because it was not acceptable or in any way natural in this country.

Overall, these operations will be done by doctors who were born in countries where it was the practice to perform the circumcision of females, and they will in the main, as Lord Hatch of Lusby pointed out last time, be more likely to be carried out as back-street abortions for a price. To protect themselves, they will of course say that it was medically necessary. Although I appreciate the objections of the members of the Royal Colleges, I think we have also to consider those who will do this for a price, or under great pressure from parents, husbands, mothers or grandmothers, who may themselves have suffered this as a cultural and traditional custom in their own countries and who will be quite prepared to defend and support a doctor who will carry it out. I think it is far too dangerous a loophole to be introduced into the Bill.

Lord Hatch of Lusby

My Lords, I should just like to reinforce what I said at the Committee stage about the inclusion of psychiatrists. As the noble Lord, Lord Kennet, has pointed out, we accept that depression is a medical disability in this country. Although I fully appreciate the purpose of the noble Lord, Lord Rea, in putting forward this amendment, I agree with the noble Lord, Lord Kennet, that it would weaken the Bill. It would create another loophole, as the noble Baroness, Lady Hornsby-Smith, has just pointed out, for a defence against the continuation of this practice. It would open the loophole that the operation had been performed for medical reasons because of the depression of the patient.

We must be quite clear. This is a very real problem. For a considerable number of young women who come from cultures in which circumcision is an essential part of the growing up and acceptance process, the operation is considered essential for adulthood and for that acceptance. Therefore its prohibition may very well lead to acute depression, which would be of a medical nature. As I said in the Committee stage, it is in my view, the responsibility of psychiatrists to remove that depression without performing the operation of circumcision. For those reasons, I would support the rejection of Amendment No. 1, while still recognising the constructive purpose behind it.

12.23 p.m.

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Trefgarne)

My Lords, I have to say that of the two alternatives before your Lordships now—and I hope that I may be forgiven for speaking both to Amendment No. 1 and to the essence of Amendment No. 2, which I think is an alternative course—I am attracted to the proposal of the noble Lord, Lord Rea. But, having said that, we should need, I think, to be clear that the words which the noble Lord proposes to include in fact achieve what they are intended to achieve. I am not entirely certain that is so in the short time in which it has been possible for me to consider these matters.

A doubt has been cast by more than one speaker upon the efficiacy of the provision for determining the mental health of a patient. Although I do not doubt that there could be some difficulties in that particular area, I would remind your Lordships that it would be open to a court to look behind the assertion of a medical practitioner that the medical health of the patient was involved and to satisfy themselves that the surgeon was indeed justified in reaching that opinion. They can, for example, take the view of other medical experts.

But, having said that, I fear that the difficulty that the Government find themselves in now is that we have not been able to reach a definitive view on these matters. Although I am attracted, I must say, to the line proposed by the noble Lord, Lord Rea, I can see, too, that there are merits in the proposal of the noble Lord, Lord Kennet, and must therefore leave it to your Lordships.

Lord Hatch of Lusby

My Lords, before the noble Lord sits down, may I just ask him to define something a little more clearly than he has done? It might leave a misapprehension. He was apparently suggesting that if there were medical psychological reasons this operation should be performed. I am sure he does not mean that. But if the patient were in such a state of depression (as I pointed out that many patients could be if they were prevented from having the operation) presumably the noble Lord and the Government would still not wish her to have this operation.

Lord Trefgarne

My Lords, as the noble Lord will recall from earlier stages, there is most certainly a form of operation on these parts of the female anatomy which could indeed be rendered necessary by psychological considerations, and quite properly so as well.

Baroness Hornsby-Smith

My Lords, before the Minister sits down, he said that it would be for the courts to pursue the investigation, but I cannot see the practicality of that happening. The girl is frightened by the cultural pressure of her family, and indeed perhaps by faith in the procedures in which she has been bred. The father will not report the doctor. The doctor will certainly not report himself. The only cases likely to come before the court would be those which resulted in some form of medical disaster—septicaemia or something of that sort—where the girl had to go to a National Health Service hospital and then it was investigated. Otherwise, I cannot see any reason why such a case should come to court.

Lord Trefgarne

My Lords, I was seeking to encompass the sort of problem which I think the noble Lord, Lord Kennet, has sought to encompass in the amendment that he has to follow this one on the Order Paper: that is to say, the rectification of abnormality. I think it was the noble Lord, Lord Kennet, who, at an earlier stage, described the circumstances where this might be necessary.

Lord Kennet

My Lords, if that is what the noble Lord has in mind, that and that alone would be covered by Amendment No. 2. Amendment No. 1 of course would cover any kind of depression, or any kind of subjective judgment by any GP anyway.

Lord Monson

My Lords, having heard both arguments, I am entirely persuaded by those of the noble Lord, Lord Kennet, and of the noble Baroness, Lady Hornsby-Smith.

Lord Rea

My Lords, I have no wish to press the amendment, but I should like to say one or two things. First, of course depression is a medical matter, but I wonder whether it is a surgical matter. Very occasionally lobotomy—that is, an operation on the brain—has been justified as a treatment for severe depression, but I am not sure that operations on other parts of the body can be taken as legitimate treatments or operations.

I do not wish to take this any further now, but at a later stage I think it would be possible, by means of a codicil or schedule—I am not a parliamentary draftsman—to define completely clearly, with professional advice, which operations are medical and which are not medical, and have these stated in the Bill, though not necessarily as part of one of the main clauses. My Lords, I withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Saving for necessary surgical operations]:

12.30 p.m.

Lord Kennet moved Amendment No. 2: Page 1, line 23, after ("person") insert ("or for the rectification of abnormality").

The noble Lord said: My Lords, I am most grateful to the noble Lord, Lord Rea, for withdrawing the amendment after discussion. As he, and the noble Lord, Lord Trefgarne, rightly said, Amendment No. 2 is an alternative. It seeks to meet the doubts of the Royal College of Obstetricians and Gynaecologists on what appears to be the most important part of the area, without opening a very broad loophole, as the "non-medical" phrase would have done. That is the question of trimming, to lay it out quite plainly. It is contended, with what validity I do not know, that a depression, which is surely a medical matter, can be alleviated, or removed, if it is associated with the conviction on the part of, typically, a young woman or girl, that her labia majora are too large. For the purpose of permitting such operations at the discretion of doctors in the ordinary way, as they have traditionally been done for a long time, I have adopted the phrase, or for the rectification of abnormality".

I think that that is likely to be the most common abnormality to be rectified, if this amendment is adopted. There are of course other, much grosser, ones, which it might have been held would have been forbidden by the words formerly in the Bill, though I cannot imagine that they actually would have been, because surely their rectification would have been for the physical health of the patient. But in order to put the matter beyond doubt, I have suggested this formulation, which I commend to the House.

On Question, amendment agreed to.

Lord Kennet moved Amendment No. 3: Leave out Clause 2.

The noble Lord said: My Lords, I beg to move Amendment No. 3, in the place of the noble Lord, Lord Rea. Am I out of order in moving an amendment which is down in the name of another Peer?

Lord Denham

My Lords, the noble Lord is in order.

Lord Kennet

I beg to move the amendment, though I shall not recommend the House to accept it. In his opening remarks—

A noble Lord

A waste of time.

Lord Kennet

No, it is not a waste of time, as noble Lords will find if they are courteous enough to hear me out. In his opening remarks the noble Lord, Lord Rea, asked, why should the normal operations of doctors and surgeons be subject to increased scrutiny simply because a few "cowboy" gynaecologists do something abhorrent? The reason why they should be subject to increased scrutiny is that a few "cowboy" gynaecologists and surgeons do something abhorrent. Among those who do these operations are qualified people, and it is in order to prevent qualified people from doing them that I have drafted the Bill so that it has a few teeth in it—not very many, but a few. If there were no qualified persons doing these operations, it would not have been necessary to have a Bill.

The noble Lord. Lord Rea, also touched on the Lord Chancellor's intervention at an earlier stage, and I should like, if I may, to say a few words about that. Of course, nobody in this House now can have a judgment to compare with the Lord Chancellor's about whether or not these operations are already illegal under the nineteenth century legislation. I merely notice that the evidence has been public and has been publicised since October 1982 that one of these operations was carried out in April 1981. I stated this on Second Reading, and informed the House that I had in my possession incontestable documentary evidence of that fact. No prosecution has been brought. Nobody has approached me for that evidence—

Lord Denham

My Lords, if the noble Lord would be kind enough to give way, I would point out that he was of course quite in order to move the amendment in the name of the noble Lord, but he would not be in order if he did not speak to that amendment.

Lord Kennet

My Lords, the effect of the amendment is to remove all the teeth from the Bill and to make it merely a declaratory one. I was giving the reasons for desiring to keep in the teeth.

At this stage I should point out to the House that all the copies of the Bill which have been circulated to noble Lords are wrong. What has been circulated is the Bill as passed on Second Reading. What should have been circulated was the Bill as amended in Committee. The wrong Bill is marked "(102)" in the bottom left-hand corner. The right Bill is marked "(170)" in the bottom left-hand corner. If any noble Lord has not a copy of the right Bill, I do not think that it matters too much, but I should simply like to avoid possible confusion in later amendments by pointing that out at this stage.

I am glad that the noble Lord has not moved his amendment, and because I want the Bill to have one or two minimal teeth, I shall now, with the leave of the House, withdraw the amendment—

Lord Denham

My Lords, the noble Lord really will be putting himself out of order if he does that. The Motion must be put, and then the noble Lord may, if he so wishes, withdraw the amendment—and I hope formally.

Lord Kennet

My Lords, I apologise to the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Notification of operations under section etc.]:

Lord Kennet had given notice of his intention to move Amendment No. 4: Page 2, line 20, leave out ("and")

The noble Lord said: My Lords, amendment No. 4 makes sense only if your Lordships have in your hands the right copy of the Bill. It is simpy a drafting amendment, consequent on changes made in Committee. Since the changes made in Committee do not appear, or appear only imperfectly—I believe that even the Bill marked "(170)" is wrong: there has been confusion between these two papers—I think that the safest thing that I can do at the moment is not to move Amendment No. 4.

[Amendment No. 4 not moved.]

[Amendment No. 5 not moved.]

Then, Standing Order No. 43 having been suspended (pursuant to Resolution of 10th May):

Lord Kennet

My Lord, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.—(Lord Kennel.)

Lord Trefgarne

My Lords, just before we now read the Bill a third time, I think that I would not wish to leave you Lordships under any misapprehension that the Bill passing, as I presume it will in a moment, is actually passed in accordance with Government approval. We have not expressed a formal view on the merits, or otherwise, of the Bill. Of course we agree with the principle which the noble Lord has adduced, but we have considerable reservations about some of the provisions of the Bill, and I should not wish your Lordships to be of any other view.

Lord Kennet

My Lords, if I may take the opportunity to say so, of course I acknowledge the objective truth of what the noble Lord has said. But there was the usual gap between First Reading and Second Reading, and there was the usual gap between Second Reading and Committee stage. The noble Lord has personally been most courteous to me throughout. I have been in touch with him throughout. But it is the case that the Government have not been able to give me any very firm advice on what to do, let alone to provide any formulations of their own—

The Deputy Speaker (Lord Nugent of Guildford)

My Lords, the Question before the House is that the Bill he now read a third time.

Lord Kilbracken

My Lords, should not the Question be, That the Report be now received?

The Deputy Speaker

My Lords, the Question is that the Bill be now read a third time. As many as are of that opinion will say, Content? To the contrary, Not-Content? The Contents have it.

The Question is, That the Bill do now pass?

Now the noble Lord may continue.

Lord Kennet

My Lords, I was content to make my remarks on this Motion, as the noble Lord, Lord Trefgarne, was to make them on the Motion before it; I do not really see the distinction. I should like to set it on the record that, though I am grateful for the personal courtesy of the noble Lord, Lord Trefgarne, I regret that the Government have not been able to give any constructive help to the formulation of the Bill so far. Of course, it will not become law when it goes out of this House, and if it is to become law it will be necessary to reintroduce it in the next Parliament. I hope that the labours of the House on the three stages that we have had will not prove to have been wasted and that the Bill will be in a better condition than it would have been had it not been carried forward to concluding its passsage through this House.

Lastly, I wish to thank all those noble Lords who have worked on the Bill, spoken on it, and improved it.

Lord Hatch of Lusby

My Lords, can the noble Lord the Minister—to whose courtesy the noble Lord, Lord Kennet, has paid tribute—assure the House that during the next four weeks his department will do some work on the Bill? As the noble Lord, Lord Kennet, has pointed out, the Second Reading took place on 21st April. The only excuse that the noble Lord the Minister has given for being unable to respond on behalf of the Government is the panic of last weekend. That is a very feeble excuse for a department that has had since 21st April to consider its attitude to the Bill.

Can the noble Lord therefore give us some assurance that when the next Parliament meets the Government will be in a position to associate themselves with those of us who have taken the trouble to put the Bill before the House so that the measure can be moved speedily through the House with the Government's consent and with the principle to which the Government agree put into practical textual form to enable it to be passed from this House to the other place with the Government's blessing?

Lord Trefgarne

My Lords, if it is in order to respond to that point, there are two matters that I should mention. First, the Bill that we are now considering is not going to become law. The Government's view on some future Bill that might be introduced in some future Parliament will have to be expressed when that Bill is introduced. I am not of course certain that anyone proposes to reintroduce the Bill or even whether the noble Lord, Lord Kennet, proposes to do so.

As for the time taken to reach a Government view on the matter, the consultation has to go a good deal wider than within my department. Ministers have to reach a collective opinion on the matter not only in accordance with the views of their officials but also having regard to the views of a wide range of professional and other opinion outside the department and in the country at large.

On Question, Bill passed, and sent to the Commons.